concurring and dissenting.
Although I agree that the trial court’s order denying habeas relief should be af*325firmed, I respectfully dissent from the majority’s holding that a pretrial application for writ of habeas corpus will not lie to raise the issue of the denial of a speedy trial as guaranteed by the Constitution of the United States. As the majority concedes in a footnote, “a defendant in a criminal case may use a pretrial writ of habeas corpus: (1) to challenge the State’s power to restrain him ...; and (S) to raise certain issues, which, if meritorious, would bar prosecution or conviction.”1 I would follow the guidance of the Texas Court of Criminal Appeals and hold that when a “pleading is not reparable, a defendant may seek relief from a time-barred prosecution by a pretrial petition for a writ of habeas corpus.”2 When the State has delayed prosecution beyond the time consistent with the due process guarantees of the Constitution of the United States, the pleading that charges the defendant with the offense is not reparable; if a violation of the speedy trial right is established, the only proper remedy is the dismissal of the prosecution with prejudice.3 That is, a meritorious writ based on a speedy trial violation successfully challenges the State’s power to restrain the defendant and completely bars prosecution and conviction.
The majority relies on a 1978 opinion of the Supreme Court of the United States and also cites a case dealing with a pretrial writ seeking to declare a criminal statute unconstitutional. I, however, believe that we should look to more recent law dealing with the issue actually before this court in determining whether habeas relief will lie. The Texas Court of Criminal Appeals has addressed the issue of habeas relief and the appropriate appellate standard when there is no timely indictment and when the denial of a speedy trial is raised. The Martin court stated,
In Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] the Supreme Court set out a balancing test with four factors to determine when pretrial delay denies an accused of his right to a speedy trial: (1) length of the delay, (2) reason for the delay, (3) prejudice to the accused, and (4) the accused’s assertion of the right. Today we adopt a Rarfcer-like, totality-of-circumstances test for the determination of good cause under article 32.01. The habeas court should consider, among other things, the length of the delay, the State’s reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused.
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Although the factors that we adopt today and the factors adopted by the Supreme Court in Barker are similar, we adopt this Barker-like test because of the similarities in the problem presented: How do courts determine when the right to be discharged in the absence of an indictment or the right to a speedy trial has been violated? The protections are different, but the problem presented is the same; a fact-intensive situation calls for a balancing of the interests served by the rule and the interests of the parties.4
Indeed, when the speedy trial complaint was couched in terms of failure to indict, *326although technically different from a pure speedy trial claim, the Texas Court of Criminal Appeals held that Appellant had waived his claim for failure to seek habeas relief:
In his seventh point of error, appellant contends that the trial court erred in denying his writ of habeas corpus and not dismissing the indictment with prejudice for failure to comply with Texas Code of Criminal Procedure former Articles 28.061 and 32.01. The Grand Jury indicted appellant for capital murder on January 24, 1996. Appellant filed his application for writ of habeas corpus on March 21, 1997. On that same day, the State filed an affidavit of “good cause” pursuant to Article 32.01 of the Texas Code of Criminal Procedure setting forth the grounds upon which the State justified the alleged delay. There was no hearing on the writ. The trial court denied appellant relief.
We have held that Article 32.01 has no application once an indictment is returned. In this case, appellant waived his right to challenge the indictment since he filed his writ of habeas corpus almost a year and a half after the indictment was returned by the grand jury.5
To require both the State and the defendant to marshal their evidence, call witnesses, pay lawyers and possibly experts to try the case in its entirety, and then endure the time and expense of appeal makes no sense when the issue can be settled in a pretrial habeas proceeding.
Because this case falls squarely within the parameters set out in Ex parte Smith,6 I would hold that Appellant properly raised her speedy trial claim in her application for pretrial writ of habeas corpus. I would then affirm the trial court’s order denying habeas relief because Appellant did not demand her day in court below but, rather, requested only dismissal.
. Majority op. at 323-24 n. 2.
. Ex parte Smith, 178 S.W.3d 797, 799 (Tex.Crim.App.2005).
. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973); Show v. State, 117 S.W.3d 883, 888 (Tex.Crim.App.2003).
.Ex parte Martin, 6 S.W.3d 524, 528-29 (Tex.Crim.App.1999) (citations omitted).
. Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999) (citations omitted).
. Smith, 178 S.W.3d at 801.